LAU FONG v. THE DIRECTOR OF IMMIGRATION

HCAL 128/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 128 OF 1999

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RULING IN RESPECT OF AN APPLICATION TO
FILE ADDITIONAL EVIDENCE

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1. The Applicant in this matter, Madam Lau Fong, has sought various orders of certiorari to quash the decisions of the Director of Immigration which resulted in his refusing to permit the Applicant to land and thereafter to order her removal from Hong Kong. During the course of the hearing this morning, the Applicant applied for a 2-week adjournment to enable her to file additional evidence. The application was opposed.

2. The grounds upon which the Applicant sought her various orders have been set out in the Notice of Application for leave to apply for judicial review. The first and principal ground was that the decisions of the Director of Immigration were 'Wednesbury unreasonable'. It has been (and is) the Applicant's contention that the decisions of the Respondent were irrational and/or perverse and were not grounded on sufficient evidence. In addition, the Applicant contends that she has been denied a fair hearing.

3. Upon a perusal of the papers, it has appeared to me that the narrow factual basis upon which the decisions of the Director have been challenged are not a fair reflection of the broader reasons given by the Director's officers in their various affirmations. The Applicant has grounded her challenge on the basis that the Director of Immigration ordered her removal from Hong Kong because he believed that the marriage certificate proving she was married to a Hong Kong permanent resident was either a forgery or had been unlawfully obtained by her. However, from a perusal of the papers - more particularly, the affirmation of Immigration Officer Poon - I was of the provisional opinion that the Director of Immigration's decision was more broadly based. The affirmation of Immigration Officer Poon is dated 3 January 2000 and was therefore filed several months ago.

4. In his affirmation, Mr Poon said that he has had access to various records and files pertaining to the Applicant. These records show that she first entered Hong Kong on the strength of a passport issued by the People's Republic of China in January 1993. She was in transit that day as she flew directly on to Bangladesh. It appears that in Bangladesh she obtained a forged Bangladeshi passport in the name of Uasha Chakma. She also went through some formality of marriage registration with a Hong Kong permanent resident named Leung Wai Ming. The Applicant entered Hong Kong with her Bangladeshi passport on 16 January 1993 and was given permission to remain. She overstayed the permission and was then arrested. She was pregnant at the time and gave birth to a child here. Her ostensible husband, Leung Wai Ming, denied being the father of the child. The father was seemingly another Hong Kong permanent resident by the name of Ng Kam Chuen.

5. When interviewed in 1993, the Applicant admitted under caution that she was Madam Lau Fong and had been born in the Mainland. She said she had worked in Shenzhen and while there had got to know Ng Kam Chuen. She had an affair with him even though he was married, his wife and children living in Hong Kong. When she fell pregnant, it was agreed that something should be done to enable her to have her child in Hong Kong. She was introduced to Leung Wai Ming by Ng on the basis that Leung had business interests in Bangladesh and would arrange to marry the Applicant in Bangladesh so that she could obtain a Bangladesh passport and be able to come to Hong Kong as Leung's spouse.

6. It is clear from her interview that, when interviewed, the Applicant inferred that in 1992, although Ng was a married man, she herself was not married. It is equally clear that the Bangladeshi marriage was a 'sham marriage' in that it was a marriage entered into solely for the purposes of enabling the Applicant to come to Hong Kong to give birth to her child here.

7. The Applicant was charged with several offences under the Immigration Ordinance and was sentenced to a period of imprisonment. She was then repatriated to the Mainland in January 1995. Her daughter, however, remained in Hong Kong.

8. Thereafter, in late 1995, Applicant was granted permission to come to Hong Kong on the strength of a document commonly called a one-way Chinese exit permit. She was originally allowed to stay for 12 months.

9. In February 1996, the Immigration Department interviewed the Applicant and during this interview the Applicant stated that she had married Leung Wai Ming in China in April 1990. In this regard, question and answer 6 from the interview reads:

"Q: Can you tell me how did you apply for a one-way exit permit in order to come to Hong Kong?

A: I applied for a one-way exit permit to come to Hong Kong in my capacity as a spouse. I married Hong Kong resident Leung Wai Ming in China in April 1990. Then I applied for a one-way exit permit in Lioaning in order to come to Hong Kong."

10. The Leung referred to is the same Leung with whom the Applicant entered into a marriage in Bangladesh. That is not disputed.

11. The Immigration Department investigated the matter further and made enquiries of the Mainland authorities concerning the validity of the Applicant's one way permit, that being based - as it was - on her supposed marriage to Leung in Northern China in 1990. A reply was received from the Bureau of Exit Entry Administration of the Ministry of Public Security of the People's Republic of China. That letter, dated 28 June 1999, reads as follows:

"After investigation, it is revealed that Lau Fong (female, born on 23-7-1966) obtained the Permit for Proceeding to Hong Kong and Macau No. 0159210 by fraud in November 1995 for settlement in Hong Kong. Please annul Lau Fong's residential qualification in Hong Kong and repatriate her back to the mainland as soon as possible. Please notify our department of the scheduled time and place so that the arrangement for reception can be made."

12. The marriage to Leung Wai Ming which, on the face of the document of marriage, was in 1990, seemingly took place in 1992. A letter dated 1 June 1999 sent to the Director of Immigration reads:

"The marriage certificate of Lau Fong submitted to our office when applying for settlement in Hong Kong is really issued by the Department of Civil Affairs in our city, but the date of issue should be 11-4-1992 instead of 11-4-1990."

13. The Applicant says that the difference between the dates was no more than a bureaucratic error and that this difference is not and can never be any indication that the Applicant's coming to Hong Kong was, as has been suggested by the Government Department in Beijing, some form of contrivance or fraud.

14. However, as I have earlier said, it appears to me that the decision of the Director was not founded solely on the fact that the marriage certificate had the wrong date. It is plain that the authorised officers of the Director took into account the whole range of factual matters to which I have made reference when deciding whether to exercise the Director's discretion to refuse permission to land and thereafter to issue a removal order.

15. If the full picture is taken into account, it would appear - on the face of it at least - to present the Applicant with considerable difficulties if she is to challenge the Director's decisions on the basis that they are irrational or perverse. One example will illustrate my point. If in her interview under caution in 1993 the Applicant said that she was only introduced to Leung in or about 1992 and co-operated with him at that time solely for the purposes of arranging some form of marriage ceremony, how could it be that she married him out of love and affection in Northern China at about that same time, or even a little earlier, that is in or about April 1992. There may very well have been a ceremony in Northern China in 1992 or at least a registration, but the Director was always concerned with the true nature and purpose of that marriage.

16. I have set out at some length - but not necessarily exhaustively - the factual background to this matter. I have done so because, as I have said, counsel for the Applicant has asked if the Applicant may be given 2 weeks within which to file an affirmation to explain how apparently the true history of this matter came to pass.

17. But the difficulty faced by Mr Pun is that this is an application for judicial review. While I have seen fit to outline the factual background, I have emphasised throughout my discourse with Mr Poon this morning that this court is not a Court of Appeal nor is it some general court of sympathy with power to remit matters back for a second consideration. Most importantly, this is not a court which is entitled to try facts.

18. Do I grant the application for an adjournment so that an explanatory affirmation may be compiled? I appreciate the consequences to the Applicant if she is returned to the Mainland but it must be borne in mind that the affirmation of Immigration Officer Poon, together with various other affirmations, were affirmed in January of this year. A study of Immigration Officer Poon's affirmation makes it clear that the Immigration Department has conducted a broad investigation, bearing in mind a large number of matters. The Applicant has, therefore, had a period of several months within which to make an affirmation. She has chosen not to do so.

19. More important, however, is the use to which this Court would be able to put any affirmation. Mr Pun has referred me to a judgment of Keith J (Kong Sau Mei and others v. Director of Immigration [1999] 1 HKC 174) in which he says that evidence may be put before the court in judicial review matters to show that the decision of the original Tribunal was plainly wrong. I accept that as a correct statement of law but the phrase 'plainly wrong' must be read as such. It is not a general permission to place further evidence by way of representation before the court adjudicating on a judicial review matter. It instead allows an Applicant to put evidence before the court to show that the particular fact upon which the original Tribunal founded its decision was plainly wrong, that is unequivocally wrong.

20. At best, the Applicant will be able to do no more than affirm a new version of events, a version which she will say explains the various inconsistencies and/or omissions that have come about historically in this matter. But where does that leave me? The Director decides the facts. It is the function of this Court to decide whether the Commissioner was unreasonable in a Wednesbury sense when he made his decision on the facts that were available to him at that time. So the fact that I receive an affirmation which perhaps places a different complexion on matters or which raises new averments is not something upon which I can adjudicate. I cannot see how, in the circumstances, it can demonstrate that the Director was plainly wrong.

21. The application for an adjournment to file a new affirmation is therefore refused. However, this does not exhaust the Applicant's grounds for judicial review. My discourse with Mr Pun this morning was based on illustrating the fact that the attack could not be as narrowly based as he appeared to advocate. Mr Pun on behalf of the Applicant is still free to proceed to argue the grounds already set out. Anything that I have said to-date is not to suggest that I have made any finding on fact or in law which prohibits or which renders it useless for the Applicant to proceed further with this application. This ruling is made only to explain to the Applicant why is that I am rejecting her application for an adjournment.